Beyond the Pale: “Too Big to Jail”

The U.S. Attorney last week confirmed Americans’ fears about Wall Street. The banks, Eric Holder said, were not just too big to fail, they were also too big to jail.

That means bankers operate beyond the pale, outside the historical fence line encircling civil society. Past the pale is where barbarians resided, returning regularly to rampage. These days, bankers operate from beyond the pale, raiding civilization with impunity.

Unlike vulnerable ancient villages, however, the United States has considerable power over these banker barbarians. Banks, after all, are nothing but corporations. Corporations are legal constructs that citizens have the right to rebuild to properly serve society. European countries began doing that last week. Their first steps included limiting banker bonuses and giving shareholders binding say on CEO pay.

The intent is to reduce risk taking. When bankers win big gambles, they’re rewarded with big bonuses. When they lose, taxpayers bail them out. The E.U. lowered the bonus payments, lowered the wagering incentive, and lowered the chances of another bailout.

Only Britain, a major banking center, voted to continue the current regime of taxpayer-financed bank gambling. Prime Minister David Cameron took a considerable risk himself to side with banks since the vast majority of the British electorate, suffering under austerity, resents the banking industry for crashing the economy, extracting bailouts and pocketing regal pay.

Although, obviously, the United States isn’t an E.U. member, the measure appears to affect some American banks and bankers. For example, it likely would cap the bonuses of executives working in New York for London’s Barclays and those working in London for Wall Street bank Citigroup.

In addition, Congress required corporations to report the ratio of a CEO’s compensation to that received by the company’s median worker. But corporations aren’t doing it – because no one’s enforcing it.

Attorney General Eric Holder eroded confidence in that on Wednesday when he testified that criminal Wall Street bankers are too big to jail. Here’s what he said:

“I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”

If these banks are so big that prosecuting outlaw executives in one will take down the economy, then it’s impossible to believe that taxpayers won’t be forced to bail them out again when Wall Street loses its next big gamble.

What Eric Holder said is that these banks operate beyond the pale, outside the rules of society because they’re too gargantuan for society to hold accountable. They can do anything they want. They can gamble like crazy, and when it fails, suffer no consequences. Taxpayers will backstop their losses. And prosecutors will decline to prosecute. That is exactly what happened in 2008.

The E.U. has refused to stand by helplessly again, like The Three Bears, while some European version of Goldman Sachs ransacks their financial house. The Swiss and the 27 European Union countries voted to change the rules in order to restrain corporate renegades and ensure banks operate in ways that benefit society.

What they did is not enough. But it’s a good start. The vast majority of Americans abide by society’s rules and live inside the pale. They need legislation to yank bankers back within that fence.